I dissent.
Art. 3, Sec. 3 of the Kansas Constitution directs that “[t]he supreme court shall have . . . such appellate jurisdiction as may be provided by law.” Pursuant to this section, appellate jurisdiction is granted by statute in those criminal eases where the defendant appeals within the restricted time there stated. Specifically, K.S.A. 22-3608(1) provides:
“If sentence is imposed, the defendant may appeal from the judgment of the district court not later than ten days after the expiration of the district court’s power to modify the sentence.”
(For a judgment to be appealable under K.S.A. 22-3608[l], there must be both conviction and either sentence imposition or suspension of sentence imposition. Cf City of Topeka v. Martin, 3 Kan. App. 2d 105, 590 P.2d 106 [1979]. An appeal from such a final judgment will be that to which I refer when I use the term “direct appeal” herein.)
K.S.A. 1984 Supp. 21-4603(3) provides:
“Any time within 120 days after a sentence is imposed . . . the court may modify such sentence ... by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits. If an appeal is taken and determined adversely to the defendant, such sentence may be modified within 120 days after the receipt by the clerk of the district court of the mandate from the supreme court or court of appeals.”
*276As the majority says, the two statutes, read together, give a criminal defendant 130 days after sentencing in which to take a direct appeal. See, e.g., State v. Smith, 223 Kan. 47, 47, 574 P.2d 161 (1977). And “Notice of appeal must be filed . . . within 130 days from the date on which sentence is imposed.” (Emphasis added.) State v. Moses, 227 Kan. 400, 404, 607 P.2d 477 (1980).
Whether the ten-day requirement prescribed by K.S.A. 22-3608(1) was met in this case where the notice of appeal was filed more than ten days after oral denial of the sentence modification motion but less than ten days after filing of the journal entry reporting that decision is a question that need be reached only if the filing of the notice of appeal was timely under the “130 days after sentencing” rule. Thus, the threshold question in this case is a question of law: Does the State ex rel. Owens v. Hodge, 230 Kan. 804, 814, 641 P.2d 399 (1982), judicial extension of the K.S.A. 1984 Supp. 21-4603(3) prescribed time within which a district court can rule on a sentence modification motion also extend the combined K.S.A. 22-3608(1) and 21-4603(3) appeal time? I conclude that it does not.
The majority and I agree that the following summarizes general principles of appellate jurisdiction:
“The right of appeal is entirely a statutory right; no appellate review is required by the federal constitution [citation omitted] or the Kansas Constitution. [Citations omitted.] It is the established rule in this state that [the appellate] court has no jurisdiction to entertain an appeal by [the] defendant in a criminal case, unless he takes his appeal within the time prescribed by the statutes providing for such an appeal. [Citations omitted.] The [appellate] court has only such appellate jurisdiction as is conferred by statute pursuant to Article 3, Section 3, of the Kansas Constitution, and when the record discloses lack of jurisdiction, it is the duty of the [appellate] court to dismiss the appeal. [Citations omitted.]” (Emphasis added.) State v. Smith, 223 Kan. at 48.
In Hodge, a mandamus action filed as an original action in the Supreme Court, the petitioning district attorney asked that the respondent district judge be ordered to withdraw and strike an order placing a convicted criminal defendant on probation. No appeal had been taken or attempted in the criminal prosecution. Appeal time was not a subject at issue in Hodge; Hodge does not address or mention it. The majority correctly states that, “Relying on federal precedent and enunciating Kansas Criminal Code and Kansas Code of Criminal Procedure philosophy, *277Hodge . . . held that ‘a district court does not lose jurisdiction to act upon a motion for reduction of sentence or for probation at the expiration of the 120-day period after sentence was imposed, where a timely motion has been filed by defendant within that time period and where the district judge reasonably needs the time to consider and act upon the motion.’ ” 230 Kan. at 814.
Hodge is in the books, but there is some concern among the federal circuits regarding the continuing validity of the federal precedent on which Hodge relies. Some circuits doubt the validity of extension of jurisdiction beyond the 120-day period but have not gone so far as to rule there can be no extension. See, e.g., United States v. Kajevic, 711 F.2d 767, 769-71 (7th Cir. 1983), cert. denied 464 U.S. 1047 (1984); United States v. Pollack, 655 F.2d 243, 245-46 (D.C. Cir. 1980). Other circuits have reaffirmed their position that the district court can retain jurisdiction beyond 120 days. See, e.g., Diggs v. United States, 740 F.2d 239, 245-47 (3rd Cir. 1984); United States v. Krohn, 700 F.2d 1033, 1035-38 (5th Cir. 1983). See generally West Key Number Criminal Law 996(2). Contrary state precedent was acknowledged in Hodge, 230 Kan. at 811.
Does K.S.A. 22-3608(1), when read in light of Hodge, give the criminal defendant until ten days after the district court’s decision on a timely filed sentence modification motion in which to appeal in cases such as this where the decision on the motion is made more than 120 days after sentencing? The statute says the defendant may appeal “not later than ten days after the expiration of the district court’s power to modify the sentence.” Hodge judicially extends the K.S.A. 1984 Supp. 21-4603(3) statutory time in which the district court may exercise its power to modify the sentence where there is a timely filed sentence modification motion. But to read K.S.A. 22-3608(1) as the majority does causes me considerable concern. The effect of such a reading is judicial extension of appeal time beyond that statutorily prescribed and it makes uncertain what is otherwise certain, that is, a 130-days after sentencing limitation for criminal appeals. Such judicial legislating and resultant uncertainty does not faze the majority.
Federal precedent provides littl^-guidance in the case before us because federal practice contemplates two appeals. Under Fed. R. App. Proc. 4(b), a criminal defendant’s notice of appeal *278must be filed “within 10 days after the entry of the judgment or order.appealed from.” The motion for sentence reduction under Fed. R. Crim. Proc. 35(b) is a separate proceeding in the original criminal prosecution also appealable under 4(b). United States v. Guiterrez, 556 F.2d 1217 (5th Cir. 1977). On the one hand, an order denying relief under a motion to reduce sentence may be appealed beyond the 120 days (Fed. R. Crim. Proc. 35[b]) plus ten days (Fed. R. App. Proc. 4[b]) contemplated by rule. On the other hand, the time for direct appeal remains constant and pendency of a motion for sentence reduction does not jeopardize the defendant’s direct appeal. Under the federal system, the consequence for a criminal defendant whose motion is held for an unreasonable time by the district judge is parole commission assumption of jurisdiction over his sentence. Diggs v. United States, 740 F.2d at 246-47.
Kansas procedure is significantly different. The time limitation on a criminal defendant’s right to a direct appeal is linked to the time in which a district court may modify his sentence, as the majority says. K.S.A. 22-3608(1) and K.S.A. 1984 Supp. 21-4603(3). By using Hodge to extend appeal time the majority judicially expands appellate jurisdiction. Here the extension is from 130 days to at least 136 days. In other cases it will be to a date perhaps months beyond the legislative mandate. In such a course of action there not only is possible violation of the Kansas Constitution, Art. 3, Sec. 3, but also, at the least, the door is opened to practical unfairness to the criminal defendant. Where a defendant who has a timely filed sentence modification motion pending files his notice of appeal more than 130 days after sentencing, his direct appeal is jeopardized by the possibility of a later determination that the district judge delayed his ruling more than ten days beyond expiration of the Hodge “reasonable length of time.” It must follow as a matter of logic that in the event of such a later determination, the defendant would then be deprived of review of his direct appeal. I need not posit other worst-case hypothetical. Despite Hodge and possible alternative readings of the appeal statute, K.S.A. 22-3608(1), I am convinced that the time for a direct appeal in a criminal case is limited to 130 days from sentence imposition.
The majority comments that avoidance of concurrent jurisdiction recommends the result they reach. I question whether it is *279necessarily better that concurrent jurisdiction be avoided. As will be discussed below, the position of the State in State v. Williams, 235 Kan. 485, 681 P.2d 660 (1984), indicates to me that I am not alone. Also with respect to sentence modification, I see no materially less likelihood of “drift in the system” than now exists in the common practice of remand for the purpose of allowing the filing and resolution of post-appeal sentence modification motions. This observation in turn warrants discussion of two Kansas cases bearing on appellate and concurrent jurisdiction.
In State v. Dedman, 230 Kan. 793, 640 P.2d 1266 (1982) (decided the same day as Hodge), it was held that the trial court lacked jurisdiction to modify a sentence after a direct appeal had been taken. I am unsettled by the degree of significance the majority gives to a judicial administration policy position expressed in Dedman dicta. Dedman filed a notice of appeal seventy days after his sentencing. The appeal was docketed seven days later. Eighty days after sentencing, ten days after filing of the notice of appeal and three days after the appeal was docketed, he filed a sentence modification motion. The affirmed ruling of the trial court was that it was without jurisdiction to entertain the motion because the motion was filed after the notice of appeal had been filed and the appeal had been docketed. In the Dedman opinion, this appears:
“[W]hen an appeal is docketed the trial court’s jurisdiction ends and the sentence may then be modified only after the mandate . . . is returned or by motion to remand temporarily for modification of the sentence.” (Emphasis added.) (p. 796-97.)
Despite what may be said was meant, to me those words say in plain English that once a convicted defendant has taken a direct appeal, the trial court is divested of all jurisdiction in that criminal proceeding until the appellate court’s mandate is received by the trial court with the sole exception being those instances where temporary remand is ordered by the appellate court in response to a motion for remand filed with the appellate court by the State or the defendant. As I will later demonstrate, the office of the district attorney for the Eighteenth Judicial District, which represented the petitioner in Hodge and the State in Dedman, and the attorney general apparently read Dedman the same way.
*280After Dedman, there is State v. Williams, 235 Kan. 485. In that case, the defendant filed a notice of appeal three days after sentencing. After the filing of his notice of appeal, the defendant filed a sentence modification motion. His appeal was permitted to be subsequently docketed out of time. Of importance is the fact that the senténce modification motion was filed after the notice of appeal was filed, before the appeal was docketed, and 122 days after sentencing. On appeal, the defendant contended that the trial court erroneously ruled it was without jurisdiction to entertain the sentence modification motion. He argued that according to the Dedman syllabus, the Supreme Court had held trial court jurisdiction was lost upon docketing of the appeal. The Supreme Court’s decision was that it “adhered” to Dedman and the court said in effect that when it spoke of docketing an appeal in the Dedman syllabus, it meant the filing of a notice of appeal. 235 Kan. at 495. No reference is made to Williams’ tardy filing of his sentence modification motion as a possible proper ground for the trial court’s decision. Because Williams’ sentence modification motion was filed 122 days after his sentencing, it was not timely filed. That alone disabled the trial court from acting on the motion.
Worthy of note is that part of the State’s brief in Williams disclosing that the district attorney for the Eighteenth Judicial District and the attorney general read Dedman as I do. In that brief, they say:
“This issue opens up a Pandora’s Box of possibilities depending upon the court’s ruling. If the trial court loses jurisdiction to modify sentence upon the filing of a Notice of Appeal after conviction, can the defendant preclude or stall his sentencing by filing a premature notice of appeal? If he is on probation while his appeal is pending, is the court prevented from revoking his probation upon the defendant’s failure to obey its conditions? If a defendant abandons his appeal after it has been filed, but more than 120 days from sentencing has passed, does he also lose the statutory right to request a modification of sentence because under K.S.A. 21-4603(3) the appellate court will not send a mandate to the district court clerk? Does the district court retain the power to modify or revoke an appeal bond if the defendant commits a second crime while his first conviction is on appeal? In the present case as the defendant failed to file a timely motion to modify within 120 days of sentencing, and the district court has lost jurisdiction to modify the sentence . . . will the district court regain jurisdiction under the second sentence of K.S.A. 21-4603(3) when this appellate action is completed and the mandate is returned? These are . . . problems which have in many cases confronted the local district courts since the Dedman decision was handed down.
*281. . The Dedman ruling has added . . . confusion in appeal bond motions, motions for a new trial based on newly discovered evidence, motions affecting changes in the appointment of appellate counsel, and other matters which need to be presented to a district court for a factual determination despite the pendency of a direct appeal.
“[T]he appellee’s major concern [is] not . . . the court’s ruling on the Dedman issues as it affects [Williams], but how the court’s interpretation or modification of Dedman may affect other matters . . . needing simultaneous jurisdiction in district and appellate courts.” (Emphasis added.)
This strikes me as fair and pertinent comment.
Summarizing, I find these five principles pronounced in our case law:
1. “Jurisdiction to entertain an appeal is conferred by statute . . . .” (Emphasis added.) State v. Moses, 227 Kan. at 404.
2. “The filing of a timely notice of appeal is jurisdictional.” State v. Moses, 227 Kan. at 404.
3. “Notice of appeal must be filed in a criminal case within 130 days from the date on which sentence is imposed . . . .” (Emphasis added.) State v. Moses, 227 Kan. at 404.
4. “Upon the filing of the notice of appeal, the trial court loses its jurisdiction to hear any motions to modify the sentence.” (Emphasis added.) State v. Williams, 235 Kan. at 495.
5. “A district court does not lose jurisdiction to act upon a [sentence modification] motion- ... at the expiration of the 120-day period after sentence was imposed, where a timely motion has been filed by defendant within that time period and where the district judge reasonably needs the time to consider and act upon the motion.” State ex rel. Owens v. Hodge, 230 Kan. at 814.
I am convinced that the first three of these principles must be held to be primary with the fourth incidental and the fifth subordinate thereto.
I conclude that in a criminal case invocation of appellate jurisdiction requires that the notice of appeal be filed within 130 days from the date of sentence imposition. That conclusion is statutorily mandated. I need not and do not decide whether defendant Myers’ notice of appeal was filed within the ten-day prescription ofK.S.A. 22-3608(1). I need not and do not reach the merits of the issues defendant Myers has asked that we review. It is my view that in appealed criminal cases the existence of concurrent jurisdiction in the trial court to resolve pending timely filed sentence modification motions and other incidental and ancillary postconviction motions and applications follows the statutorily stated legislative will. Delineation of such con*282current jurisdiction of the trial court is for another day and in appellate proceedings arising out of facts other than those now before us. I am troubled by the Dedman dicta stating a policy position that criminal actions be lodged in only one court at a time. 230 Kan. at 797. I agree with this position as a matter of judicial administration policy but I do not find it to be the statement of a rule of law and literal adherence to such a policy results in procedural and jurisdictional problems that are very real to the defendant, the State and the trial courts. At least limited concurrent jurisdiction in the trial court more closely accords with statutorily stated legislative will.
Where appeals are involved, confusion and uncertainty have been the ripple effect of Hodge, Dedman and Williams. Instead of alleviating that confusion and uncertainty, the majority’s decision adds to it. Such confusion and uncertainty is the too frequent result of selective use of not directly related or analogous judicial statements and holdings as legal reasoning to support the result desired in a single case presented for review.
I note the recently filed opinion of our Supreme Court in State v. Dubish, 236 Kan. 848, 696 P.2d 969 (1985), an opinion authored by Justice Lockett, who was the Williams trial judge. Dubish says in part that where a motion for probation is filed by the defendant while his direct appeal is pending, the trial court has “jurisdiction to grant or enter any order with respect to” that motion. 236 Kan. at 855. This strikes me as contrary to the statement in Williams that “[t]he court’s rationale in Dedman supports the argument that the trial court loses jurisdiction over the case with the filing of the notice of appeal." (Emphasis added.) 235 Kan. at 495. I leave to the contemplation of others whether that “holding” in Dubish is a statement of obiter dictum under the facts of Dubish and its two other holdings that the sentencing “judge does not have the right to grant probation for . . . one offense and impose imprisonment for other convictions arising out of the same transaction” and that the “sentencing judge has no jurisdiction to manipulate the eligibility date for release of a person sentenced to incarceration by granting probation on certain convictions and incarceration on others.” 236 Kan. at 855.
Implementation of judicial administrative policy and “drift in the system” avoidance should not be accomplished by judicially *283legislating. Statutory change is for the legislature, not the judiciary.
Defendant Myers’ appeal should be dismissed. His notice of appeal was not timely filed.